Montana’s States’ Rights Showdown

Newsweek ^ | 23 April, 2010 | Daniel Stone and Stuart Taylor Jr.

[marktwain]

State lawmakers have done a lot since President Obama's election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn't permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that guns manufactured in Montana and sold in state are not subject to federal rules such as background checks, is slated to become the first of these Obama-era commerce challenges tested in court. But the case, which originated when a gun-rights group sued the Justice Department for threatening a crackdown, shouldn't give separatists hope: it's doomed to fail, as will similar rebukes.

That's because no state is an island (Hawaii included), and Congress can regulate anything that could jump state lines. It's a category, says George Mason University professor Nelson Lund, a Second Amendment scholar, that excludes almost nothing—certainly not pot and guns.

[marktwain]

This argument, that the interstate commerce clause gives the federal government the power to regulate everything, renders the interstate commerce clause meaningless. If interstate commerce means all commerce, then the writers of the Constitution would have said "commerce", not "interstate commerce".

However, this nullification of the interstate commerce clause is one of the main pillars of the "progressive" program.

[screaminsunshine]

“Could” jump state lines??? It is only Interstate Commerce “When” it jumps state lines.

[KarlInOhio]

The original purpose of the interstate commerce clause was not to give the federal government control over all interstate commerce or actions which could relate to interstate commerce, but to prevent states from restricting and taxing it like they had been doing under the Articles of Confederation.

If I were given the power to edit the Constitution, it is one of the first few things I would change to explicitly return it to its original purpose.

[Clint Williams]

Congress can regulate anything that could jump state lines.

Funny, I don't see that in the constitution. But it doesn't really matter: too many did too little for way too long and as a result we now live in a growing tyranny.

Thanks for nothing, folks.

America -- a great idea, didn't last.

[Repeat Offender]

Yes, "could." You are guilty of a crime that may happen.

Now, that's what I call "progress." /sarc

[KarlInOhio]

“Could” jump state lines??? It is only Interstate Commerce “When” it jumps state lines.

That goes back to (at least) the awful 1942 Wickard v Filburn Supreme Court decision which stated that the grain a farmer grows for his own livestock could be limited by the federal government because it could affect interstate commerce since grain was used in interstate commerce.

[screaminsunshine]

That is awful. Soon we will pay tax penalties because we might not pay on time next year with that logic.

[Logical me]

Communists America is here and well.

[Extremely Extreme Extremist]

Funny, I don't see that in the constitution.

It's there. It's after the paragraph giving the gov't authority to legalize sodomy and abortion.

[Still Thinking]

Ping!

[Carry_Okie]

If interstate commerce means all commerce, then the writers of the Constitution would have said "commerce", not "interstate commerce".

Correct. The clause was meant to abolish interstate tariffs, nothing more.

This will make for an interesting test.

[MamaTexan]

Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn't permit interference in purely local affairs.

They'd still be wrong.

Mr. MADISON was surprised that any gentleman should return to the clauses which had already been discussed. He begged the gentleman to read the clauses which gave the power of exclusive legislation, and he might see that nothing could be done without the consent of the states. With respect to the supposed operation of what was denominated the sweeping clause, the gentleman, he said, was mistaken; for it only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause. As to the restriction in the clause under consideration, it was a restraint on the exercise of a power expressly delegated to Congress; namely, that of regulating commerce with foreign nations.
U.S. Congressional Documents and Debates, 1774 – 1875
Elliot's Debates, Volume 3, page 455

Madison himself said the consent of the States was required and that the power to regulate commerce was an external power, NOT an internal one.

Congress can direct goods coming from overseas to the various ports of the States so the States with ports get a relatively equal share of 'income' taxes.

That's ALL the Constituion allows for.

[Ken H]

One legal scholar is citing Scalia's opinion in Raich in defending Obamacare from a constitutional challenge. Charles Fried, Solicitor General 1985-1989 and Harvard Law professor was on Greta Van Susteren, 04/14/2010:

______________________________________

FRIED:The statute which I have front of me, I bothered to read it, says that the health insurance industry is an $854 billion dollar industry. That sounds like commerce.

The Supreme Court just five years ago with Justice Scalia in the majority said that it is all right under the Commerce Clause to make it illegal for California for residents in California to grow pot for their own use, because that has affect on interstate commerce.

Well, if that has affect on interstate commerce, what happens in an $854 billion national industry certainly does.

-snip-

FRIED: I daresay that, because I looked at that 2005 lawsuit about the pot in California. If somebody growing pot in their basement is interstate commerce and Scalia said so, I don't know where you are going to get five votes the other way.

http://www.foxnews.com/story/0,2933,591103,00.html

[is_is]

i “could” kill someone, so put me in jail now.....just in case

[ez]

That goes back to (at least) the awful 1942

Figures...FDR.

[Recovering_Democrat]

Later this year, the Montana Firearms Freedom Act, which proclaims that guns manufactured in Montana and sold in state are not subject to federal rules such as background checks, is slated to become the first of these Obama-era commerce challenges tested in court. But the case...[is] doomed to fail, as will similar rebukes.

That's because...Congress can regulate anything that could jump state lines.

I don't think that was the intention of the Founding Fathers. I think the 10th Amendment is in the Constitution for a damn good reason.

NewsWEAK is losing readers because they are irrelevant, and this article is another evidence of their lame, parochial, closed minded thinking.

[Stop the Feds with Article 5]

I agree!
2/3 of the States should call a Constitution Convention and explicitly define the Commerce Clause in an amendment. With 3/4 States ratification, we can reduce the power from DC to an acceptable level.

[Recovering_Democrat]

That is an interesting point, though I’d like to see the entirety of the opinion.

Scalia is a good man, I cannot imagine he would approve of a socialized health plan. Hmm.

[redgolum]

Well, they are launching the propaganda.

Just wait till the filibuster is removed. There will be a gun ban bill hitting Bambi’s desk within a week.

[Ken H]

2/3 of the States should call a Constitution Convention and explicitly define the Commerce Clause in an amendment. With 3/4 States ratification, we can reduce the power from DC to an acceptable level.

Agree. Madison stated very clearly the original understanding of the power to regulate commerce among the several states:

...it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government...

James Madison to Joseph C. Cabell, 13 Feb. 1829

http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces19.html